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true, it would be very inequitable to 891, where at the time of the oral award damages in this case.” That a modification a part of the goods called modification which has been acted for in the contract had been delivered. upon by the parties, the position of one The theory is not altogether clear; the of them having been changed for the court says: “The oral part of the worse in reliance on the modification, agreement of that date did not alter precludes the other party from setting the terms of the contract; it merely up the Statute of Frauds, is recognized fixed the time within which the merin Rogers v. Maloney (1917) 85 Or. chandise that should have been de61, 165 Pac. 357, a case involving a livered long before might be delivered waiver. A statute providing that a under the contract. It went to the perwritten contract may be modified by an formance of a subsísting contract of executed oral agreement was relied recognized validity. Scheerschmidt v. upon by the court in Re Turpin Hotel Smith (1898) 74 Minn. 224, 77 N. W. Co. (1918) 160 C. C. A. 165, 248 Fed. 34. Moreover, that was not an oral 25, in support of its conclusion that modification of a contract necessarily an agreement reducing the rent for the void unless in writing. True, it was a leased property, which has been acted contract for the sale of goods of the upon by the parties, was a modification value of more than $50; but if part of of the original lease. A contract ex the goods were delivered and accepted, tending the time for the performance the contract need not be in writing. of a vendor's contract to make a deed, Sixty tons of the bran were delivered which has been executed, is thereby and accepted under this modification, taken out of the statute, so as to effect and as part thereof. And there is no a release of a surety on the vendor's trouble with the consideration, for debond. Bever v, Butler (1833) Wright fendant was then in default-more (Ohio) 367.

than a reasonable time for dealing had That the modified agreement deter elapsed-and a waiver of this breach mines the rights of the parties is was a consideration for defendant's especially true if there has been what promise to make shipment during amounts to a part performance. Ger April." ard-Fillio Co. v. McNair (1912) 68 The action which has been taken by Wash. 321, 123 Pac. 462; Oregon & the parties in the cases which have W. R. Co. v. Elliott Bay Mill & Lumber held the rights of the parties determinCo. (1912) 70 Wash. 148, 126 Pac. able by the modified agreement has 406. An oral agreement modifying a varied. In some it has consisted in written mining lease, after the dis nonaction, in reliance upon the oral covery of certain conditions which modification. The relief which was made the lessee unwilling to go on being sought in the case in which the with it as originally written, under question arose has some bearing upon which the lessee went on with opera the question. Relief has, however, tions, and mined for six months or been granted in a great variety of more, and paid the lessor royalty actions. Thus, it has been held that according to the oral agreement, was a vendor of property can defend an held to be so far performed as to be action for breach of his contract to taken out of the Statute of Frauds. convey, by showing that he has conLast Chance Min. Co. v. Tuckahoe Min. veyed the land which is the subject of Co. (1918) - Mo. App. -202 S. W. the sale in pursuance of a subsequent 287. An oral agreement modifying a oral agreement between the parties.' written agreement for the sale of Beach v. Covillard (1854) 4 Cal. 315. goods, entered into after the time The facts are not clearly stated in this fixed by the writing for the delivery case.

It was an action to recover of the goods had expired and a default damages for the breach of a covenant had occurred, that the goods should be under seal to convey certain lots. On delivered at a certain time, was held the trial of the cause the defendants to be good in McDonald v. Union Hay offered to show that they had conveyed Co. (1919) 143 Minn. 40, 172 N. W. one of said lots to a third party at the

verbal direction and request of the is estopped from pleading the statute plaintiff, and also offered in evidence and denying his obligation under the a receipt signed by the plaintiff for the contract, in an action by the optionee, “deed to said lots described in said who had performed within the time bond.” This testimony was excluded fixed by the oral extension, to enforce by the trial court, and a judgment the obligation of the contract. It is rendered for the plaintiff. Upon stated that the optionee, “having conappeal, this judgment was reversed sented to the delay at the request of and a

new trial ordered. See Mc [the optionor], will be taken to have Kinley v. Macbeth (1911) 113 Minn. been ready and willing to perform at 148, 129 N. W. 216, 389, infra. Like the time stipulated in the written wise, a vendor can defend an action in agreement. Having tendered the specific performance by showing an amount due within the period fixed by oral agreement that the title was to be the postponement, he is in no default, held until a note given for money

and the extension having been given borrowed by his vendee, on which he at (the optionor's] request and for his became surety, was paid. Worden v. convenience, when the extended agreeCrist (1883) 106 Ill. 326. It is stated ment itself and all the circumstances that the Statute of Frauds does not clearly implied that he regarded it as prevent the parties to an executory a valid and binding contract, and that contract for the sale of real estate he intended to live up to its terms, the from agreeing by parol to change the law will not permit him now to terms of the contract and impose new repudiate its obligations, invoke for conditions. In this case the legal title his protection the Statute of Frauds, to the land in question was in a third and defeat the plaintiff's recovery, who party, and it was agreed by parol that has forborne a timely performance by the land should be held by the third reason of [his] request and in reasonparty until the note was paid. Upon able reliance on his assurance.” Alsan action by an assignee of the bond

ton v. Connell (1906) 140 N. C. 485, for title, whose rights rose no higher

53 S. E. 292. It is held in Anderson than those of the vendee, in specific v. Moore (1893) 145 Ill. 61, 33 N. E. performance, his right to maintain the

848, that the parties to a contract for action was denied, the oral agreement the sale of real estate may agree by being held a defense.

parol that, if the vendee will pay the A party who has performed accord

entire purchase money, the vendor will ing to the oral agreement may main

deliver the deed therefor before the tain an action to compel performance

time fixed in the writing. Accordingby his vendor. Welch v. McIntosh

ly, a specific performance was grant(1913) 89 Kan. 47, 130 Pac. 641, hold

ed, although the bill was filed before ing that a vendor of real estate, who

the time fixed in the writing for delivwas to receive payment in a certain

ery of the deed. Nothing is said as way, and who orally agreed to accept

to the Statute of Frauds. A vendee payment of a part of the purchase price in cash, and a mortgage for the balance,

was granted specific performance in whereupon a check for the cash pay

Maloughney v. Crowe (1912) 26 Ont. ment and such a mortgage were given

L. Rep. 579, 22 Ont. Week. Rep. 635, 3 him, he agreeing to make a deed if,

Ont. Week. N. 1488. The parties in upon examination, he found no more

this case had modified the written against the mortgaged property than

agreement by providing that part of had been represented to him, could be the purchase price should be paid at compelled to convey the land as agreed. the time stipulated in the writing, and One who gave an option upon land, the balance should be paid at a subseand who, when the optionee was quent date, upon which possession was arranging to secure and pay the sum to be delivered by the vendor. Apstipulated, requested that the time for parently, at the time of the action, the the payment of the same be extended entire sum was due. beyond the period fixed in the writing, See Spencer v. McCament (1907) 7

Cal. App. 84, 93 Pac. 682, infra, V. See Low v. Treadwell (1835) 12 Me. 441, supra, III. See Stark v. Wilson (1814) 3 Bibb (Ky.) 476, supra, II. b.

A party who has performed according to the oral agreement may recover according to the writing. Moore v. McAllister (1857) 34 Miss. 500, holding that the obligee in bonds given for the purchase money of lands, in each of which there was a clause that it was to be void unless, on or before the time it became due, the obligee made a good title to the land to the obligor, and the obligee failed to make title before the first obligation became due, but before the maturity of the second obligation, at the request of the obligor, procured the title to be conveyed to a third party, to whom the obligor had sold-might recover on the bonds against the obligor.

One who has performed according to the oral agreement may maintain an action in damages for nonperformance. Kingston v. Walters (1911) 16 N. M. 59, 113 Pac. 594, holding valid an oral extension of the time for the performance of the land contract so as to sustain an action by the vendee, who had performed within the time of the extension, against the vendor for damages for breach of his contract in refusing to perform. This is based in part in this case upon the principles of estoppel, the court stating that where a representation as to the future relates to an intended abandonment of an existing right, and is made to influence others, and they have been influenced by it to act, it operates as an estoppel. Where a written contract for the exchange of real estate, in which it was agreed that the seller should correct all circumstances amounting to violations of law or municipal ordinances, had been subsequently modified orally by an agreement that, instead of removing or correcting such violations, a sum in cash sufficient to correct them should be deposited, it was held that an action in damages might be maintained by one of the parties, who was ready and willing to comply with the oral agreement, against the other, who refused to convey. Imperator Realty Co. v.

Tull (1920) 228 N. Y. 447, 127 N. E. 263. According to the majority opinion, “the defendant, by his mutual oral contract with the plaintiff, is estopped from now claiming that the plaintiff, who relied thereon, was in default on the due day of the written contract because of its omission to then have the property free of the violations. He should not be allowed to take advantage of an omission induced by his unrevoked consent.” Apparently, the plaintiff, in reliance upon the oral modification, failed to make any attempt to remove the grounds of violation. One who tendered goods sold within the time fixed by an oral extension of the written contract may maintain an action in damages against the other party for breach of his contract to accept. Hirsch Rolling Mill Co. v. Milwaukee & F. River Valley R. Co. (1917) 165 Wis. 220, 161 N. W. 741.

And it has been held that one who has performed in reliance upon the oral agreement may recover according to the oral agreement. Blake v. J. Neils Lumber Co. (1910) 111 Minn. 513, 127 N. W. 450, holding that one who had contracted to cut and deliver timber might recover an increased compensation orally agreed to, upon a valuable consideration, where, in reliance on the agreement, he went forward with his contract. The suit was for the increased compensation only, the compensation fixed in the writing having been paid.

One who has performed according to the oral agreement can defend an action on the writing. (HECHT V. MARSH (reported herewith) ante, 1; Gerard-Fillio Co.

v. McNair (1912) 68 Wash. 321, 123 Pac. 462; Oregon & W. R. Co. v. Elliott Bay Mill & Lumber Co. (1912) 70 Wash. 148, 126 Pac. 406) or for damages for default (Smiley V. Barker (1897) 28 C. C. A. 9, 55 U. S. App. 125, 83 Fed. 684, certiorari denied in (1897) 169 U. S. 736, 42 L. ed. 1216, 18 Sup. Ct. Rep. 940).

One who agreed to purchase a certain amount of bark to be peeled by him can

lefend an action for the purchase price for the amount fixed in the writing, where, by oral agreement, this

V.

amount was reduced, and he had acted by the modified agreement, and the on the oral modification making his same has been fully executed. Doherty contracts accordingly. Thomson v. Doe (1893) 18 Colo. 456, 33 Pac. 165, Poor (1895) 147 N. Y. 402, 42 N. E. 14. holding that a lessor who had agreed But see infra, V. One who has to accept a less rent from his lessee tendered performance according to the than was stipulated in the writing, and oral agreement has been held to have had made a final settlement with him a defense against an action in damages on this basis, has no cause of action for default. Albert Mackie & Co. v. against the lessee on the agreement as S. S. Dale & Sons (1920) 122 Miss. 430, contained in the writing. Where the 84 So. 453. In this case a vendor of six rent provided in a lease has been recarloads of potatoes was held to have duced and the lesser sum paid, there a defense to an action in damages can be no recovery of the sum stipufor nondelivery, where, in accord with lated in the writing. Bowman v. an oral agreement subsequently en Wright (1902) 65 Neb. 661, 91 N. W. tered into, he tendered three carloads, 580, 92 N. W. 580. The sum provided which the purchaser refused to accept. for in the parol agreement had been The court says: “In the case at bar, paid and accepted in full during the the party relying upon the subsequent whole term of the lease. A written parol agreement is purely on the de lease, by the terms of which the tenant fensive. Appellee is not seeking to was entitled to a portion of the net compel performance, and is asking no proceeds of the crop raised on the affirmative relief at the hands of the land, may be modified by oral agreecourt. The evidence which was ob ment so as to entitle him to one half jected to was admissible to show per of the crop, and where the parties have formance of the original written con acted upon it in its modified form, it tract. There is no serious contention is valid to the extent, and during the that appellee did not in fact secure period, so acted upon and carried out. three carloads of potatoes, and offer Denison v. Sawyer (1905) 95 Minn. to ship them in accordance with all 417, 104 N. W. 305, holding valid a the terms of the original written con chattel mortgage given by the tenant tract. At the time appellant refused to on the crop. Upon the authority of accept the three cars, it was impos this case it was held in C. S. Brackett sible, according to the testimony, for Co. v. Lofgren (1918) 140 Minn. 52, appellee then to secure the other three L.R.A.1918F, 998, 167 N. W. 274, that cars. Its failure to secure the three the Statute of Frauds did not render cars is justified by the parol under invalid the oral termination of standing."

written lease within the Statute of A vendor cannot declare a contract Frauds, where the lessee vacated and forfeited for nonpayment within the the lessor repossessed himself of the time fixed in the written agreement, premises in accord with the modified where he has induced the delay. Nep agreement. It was held further that pach v. Oregon & C. R. Co. (1905) 46 the lessor could not recover rent at Or. 374, 80 Pac. 482, 7 Ann. Cas. 1035; the rate stipulated in the written conWhiting v. Doughton (1903) 31 Wash. tract, where the parties agreed to 327, 71 Pac. 1026. See Smiley v. reduce the rent, and month after Barker (1897) 28 C. C. A. 9, 55 U. S. month, for two years, the lessee paid App. 125, 83 Fed. 684, certiorari denied and the lessor receipted for rents at in (1897) 169 U. S. 736, 42 L. ed. 1216, the reduced rates. Where by mistake 18 Sup. Ct. Rep. 940, and Scott v. a contract between a vendor and Hubbard (1913) 67 Or. 498, 136 Pac. vendee described too much land, and, 653, infra, IV. b.

upon discovery of the mistake, a proThis rule, that the rights of the par posal was made by the vendor to alter ties must be determined by the modi the terms of the written contract and fied agreement where it has been acted there was an acceptance of the proupon, is especially applicable where posal by the vendee, the final payment, both parties have governed themselves delivery, and acceptance of the deed

а

was

were held in Benesh v. Travelers' Ins. to him. As a method of securing the Co. (1905) 14 N. D. 39, 103 N. W. 405, title for the last purchaser, it was to be a complete execution of that agreed that he should be returned as modification of the written contract the purchaser and obtain a deed from within the meaning of a statute that the sheriff. This was accordingly a written contract may be altered by done, and the mortgage debt and the an executed parol agreement. Where, judgment discharged, and the balance in pursuance of a subsequent oral paid into court. The action was by the contract authorizing an exchange of last vendor to secure the balance of properties, instead of a sale as pro the purchase money. Apparently in vided in the written agreement, the answer to the objection that the Statsubject-matter of the written contract ute of Frauds prevented this relief, the has passed beyond the control of the court states that the contract between parties so that performance of the the original vendor and his purchaser written contract on either side is im was legal and binding upon the parties, possible, the rights of the parties must being in all respects perfectly conbe determined according to the subse- formable to the Statute of Frauds; that quent modification; in such a case the verbal agreement subsequently neither party can predicate any right entered into

no variation or of action on the writing against the change of the written contract for the other, because neither can aver per sale of the land, but only indicated formance or an offer to perform his the mode in which the title was to be part of such contract. Lucas v. Cass secured for the purchaser. In the County (1905) 75 Neb. 351, 106 N. W. subsequent Maryland case of Walter v. 217. It is held in McKinley v. Macbeth Victor G. Bloede Co. (1901) 94 Md. 80, (1911) 113 Minn. 148, 129 N. W. 216, 50 Atl. 433, the court states that the 389, that a party to a contract for the agreement in the former case was exchange of real estate, who has per fully executed and the lien paid, and formed his agreement as modified by the surplus purchase money paid into parol, is not in default so as to subject court, so that there was in fact no him to an action in damages for breach question under the Statute of Frauds of the contract. The contract involved before the court, since the statute has in this case was performed by both of no application to executed contracts. the parties, and upon application for See Le Fevre v. Le Fevre (1818) 4 rehearing it was stated that, such be Serg. & R. (Pa.) 241, 8 Am. Dec. 696, ing the fact, the bar of the Statute of infra, IV. b. Frauds was thereby removed from the Where the other party has accepted entire contract. The question of the the performance according to the oral Statute of Frauds is not directly raised agreement, he can then be compelled in Reed v. Chambers (1834) 6 Gill & J. to perform according to his agreement (Md.) 490. In that case one who had contained in the writing. Salomon v. purchased land of an execution debtor, United States (1874) 19 Wall. (U. S.) agreeing to pay the amount of the exe 17, 22 L. ed. 46. See Welch v. McIntosh cution and the amount of a mortgage (1913) 89 Kan. 47, 130 Pac. 641, on the premises and the balance to the supra. In Swain v. Seamens (1870) vendor, agreed with the officer levying 9 Wall. (U. S.) 254, 19 L. ed. 554, it the execution, for the purpose of se was held that a mortgagee who had curing the title to the purchaser, that agreed to cancel and discharge the the land should be sold by the officer mortgage, and accept in its stead an under the execution. Upon the execu insurance policy upon a mill of certion sale the land was bid in by an tain dimensions to be erected upon the assignee of the original purchaser at mortgaged premises, could not, in a the sum agreed upon. The assignee suit to compel him to cancel and disthen sold his title at an advance over charge the mortgage as agreed in the this sum, with an understanding that written stipulation, set up that the mill his purchaser was to pay the mortgage was not of the dimensions fixed in the debt and the judgment, and the balance writing, where he acquiesced in a

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